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The Future of Rape Trials

There has been a lot of media attention recently about how rape trials are conducted following the suicide of Frances Andrade who took her own life after giving evidence against the man she claimed raped her as a teenager.

Many people have suggested that it is time to stop nasty lawyers deliberately upsetting victims of rape when cross-examining them.  These comments have come from such esteemed sources as the Crime Editor for the Times newspaper, somebody who really should know better.

Since I began practising law, things have got much easier for the prosecution in all types of criminal case.  When I started out we were filled with maxims such as, "It is better that ten guilty men go free than one innocent man is convicted".  When I started out the presumption that you were innocent until proven guilty was still firmly enshrined.  However, that has changed little by little.  First, despite being presumed innocent, the accused was banned from cross-examining the complainant in sex cases.  This seems fair, if he did do it then he shouldn't be allowed to harass his victim.  There are also special measures available in any type of case that allow complainants to be screened off from the defendant either by a physical screen or by giving evidence via video link so they are not even in the same room as the person they are accusing.  Again, this is good for victims as it helps them give their evidence better; but it also makes it easier for a lying witness to avoid confronting the person they are attempting to falsely accuse!  And yes, that does happen in all types of case.  I don't know if it is more or less common in one type of offence than another but I doubt there are any criminal lawyers in practise who have not come across a lying witness, either their own or their opponents!

The most recent calls for change are the most worrying I have ever heard.  People are essentially saying that defendants should not even be allowed to challenge their accusers through a professional lawyer.  Many suggest that we should adopt a "continental approach" and drop the adversarial process.  This ignores the fact that even in France criminal trials are adversarial!  The Inquisitorial system whereby judges gather evidence etc is more akin to our (very) old-style committal proceedings where magistrates did operate an inquisitorial procedure as examining magistrates.  But, even in France when a judge in the Inquisitorial system finds sufficient evidence to charge a defendant the case is sent for trial by judges and jury in a system that any English criminal lawyer would recognise.

Why do we use this system?  Because, only through challenging a witness can you test their evidence, assess the reliability of their account and judge their honesty.  This is because sometimes their evidence may be completely honest and accurate from their point of view but it may not stand up to scrutiny because they made a mistake.  Sometimes the witness may be actively lying.  Sometimes they may have been forced to give evidence in court.  We just don't know... until and unless we test the evidence!

If somebody shows me a system that can work without the adversarial element then I would happily say we should change our system.  But, I have yet to find such a system despite looking.

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